ADA Decisions Archive: 1992 - 1995, DISABILITIES-DECISIONS 2 ADD ¶2-303, US Department of Labor, Office of Federal Contract Compliance Programs, Plaintiff v Delta Airlines, Inc, Defendant., (Mar. 20, 1996), (Mar. 20, 1996)

US Department of Labor, Office of Federal Contract Compliance Programs, Plaintiff v Delta Airlines, Inc, Defendant.

US Department of Labor, No 94-OFC-8,, March 20, 1996

Rehabilitation Act of 1973

Disability status--Visual/eye condition--Correctable. Myopia (poor eyesight), as a relatively common condition that is easily correctable and does not substantially limit an individual’s employability, is not an impairment under the Rehabilitation Act. Even myopic commercial pilots, who are among the very few workers limited by the condition, can find alternate employment in training, management, or courier transportation.

Disability status--Regarded as having impairment--Unfit for particular job. Myopic pilots (pilots with poor eyesight) were not regarded by an employer as having an impairment merely because they did not meet the employer’s vision standards for new hire pilots. The employer merely considered myopic pilots unable to meet the requirements of a single job, rather than as substantially limited in a major life activity.

Kathleen Hooke, Adrienne Dwyer, and Debra A. Millenson (U.S. Department of Labor), Washington, D.C., for Plaintiff. Hunter Hughes, Benjamin Stone, and Jeffrey W. Willis (Rogers & Hardin), Atlanta, Georgia, for Defendant.

Before Tureck, Administrative Law Judge.

RECOMMENDED DECISION AND ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT

Tureck, Administrative Law Judge: This is a case for instatement and damages arising under Section 503 of the Rehabilitation Act of 1973, 29 U.S.C. §793, and the regulations contained at 41 C.F.R. Part 60-741. Cross motions for summary judgment were filed. The Office of Federal Contract Compliance Programs, United States Department of Labor (“OFCCP”) contends that Delta Airlines, Inc.’s (hereinafter “Delta”) vision standard for flight officers violates Section 503 of the Rehabilitation Act because it discriminates against qualified disabled individuals. Delta argues that it is not violating the affirmative action obligations of Section 503 because pilots who fail to meet its vision standard are not disabled individuals within the meaning of the Rehabilitation Act.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

a. Background

To be eligible for a pilot certificate in the United States, an individual must meet minimum age requirements, be able to read, speak and understand English or have limitations placed on his or her license to allow for the safe operation of an aircraft, and hold a medical certificate. See 14 C.F.R. Part 61. Specifically, to be eligible for a commercial pilot certificate, a person must be at least 18 years old, be able to read, speak and understand English, and hold, at a minimum, a valid second class medical certificate. [1] 14 C.F.R. §61.123. In order to obtain a first or second class medical certificate an individual must meet certain medical standards for sight and hearing and not suffer from any medical condition including mental, neurologic or cardiovascular ailments that would make an applicant unable to safely perform the duties of a pilot. See 14 C.F.R. §§67.13-67.15. The requirements for either certificate include the following sight standards: “distant visual acuity of 20/20 [2] in each eye separately, without correction, or of at least 20/100 in each eye separately corrected to 20/20 or better with corrective lenses.” [3] 14 C.F.R. §67.13(b)(1) and §67.15(b)(1). If an individual does not meet the requirements for any of the three classes of medical certificates, the Federal Air Surgeon may issue a special medical certificate if he or she is satisfied that the applicant is capable of performing the duties of a pilot without endangering commercial air travel. [4] 14 C.F.R. §67.19.

Delta is an air transportation service company headquartered in Atlanta, Georgia. OFCCP’s Facts, at 1. In this capacity, Delta acts as a government contractor, holding contracts in excess of $2500 with the General Services Administration to provide air transportation services to Government employees traveling on official business and the United States Postal Service to transport mail on regularly scheduled flights. OFCCP’s Facts, at 2-3. Delta employs individuals with pilot certificates as captains (pilots), first officers (co-pilots) and second officers. OFCCP’s Facts, at 2. Only second officer positions are filled by new hires; first officer and captain positions are filled by internal promotion. [5] Delta Airline’s Reply Brief, at 26. The second officer acts as a flight engineer and assists the captain and first officer in operating the aircraft. Should the captain or first officer become incapacitated, the second officer assumes the duties of the first officer. OFCCP’s Facts, at 2. Since at least March 1, 1989, Delta has required new flight officer applicants to be at least 21 years of age, able to pass a rigorous physical examination including, a demonstration of 20/20 visual acuity, uncorrected, in each eye and hold a FAA commercial license with a FAA instrument rating and a FCC restricted radio-telephone license. [6] See Joint Stipulation; Delta Brochure. Delta does not make exceptions to its vision standard regardless of an individual’s prior experience, FAA certification or demonstrated ability to perform the duties of a pilot. Joint Stipulation. Additionally, Delta prefers applicants with college degrees who have flight time on fixed-wing, multi-engine aircraft and who have passed the flight engineer written exams. Delta Brochure. Delta does, though, retain flight officers whose vision deteriorates after they are hired. Delta’s Facts, at 2; Affidavit of Wayne R. Knittel. Current pilots are only required to meet the FAA’s minimum standards for a first class medical certificate: 20/100 uncorrected vision corrected to 20/20 or a special medical certificate of demonstrated ability. Id. Delta maintains these dual policies because while Delta is committed to maintaining “the highest possible standards for airline safety,” it spends tens of millions of dollars per year training its pilots, and it is cost prohibitive to terminate every pilot whose vision deteriorates below 20/20. Delta Letter dated March 26, 1993; Delta’s Facts, at 2.

Complainants Jerry Johnson and Jeffrey Gullickson both applied for flight officer positions with Delta but were rejected from consideration because neither met Delta’s vision requirements. See Declaration of Jerry R. Johnson (hereinafter “Johnson’s Declaration”) and Declaration of Jeffrey M. Gullickson (hereinafter “Gullickson’s Declaration”). Both Johnson and Gullickson hold FAA airline transport pilot licenses [7] . Johnson’s Declaration, at 1; Gullickson’s Declaration, at 1. Although Johnson’s uncorrected vision is 20/200, he was granted a first class medical certificate with a statement of demonstrated ability in the late 1970’s because his vision is correctable to 20/20. Id., at 1, 4. Gullickson, on the other hand, holds a first class medical certificate without waiver because his uncorrected vision is 20/40, correctable to 20/20. [8] Gullickson’s Declaration, at 1, 3. Both men suffer from myopia, a refractive error which prevents the eye from focusing images clearly on the retina. [9] Declaration of Dr. Monaco, at 4. Without their corrective lenses, neither Johnson nor Gullickson are capable of driving, flying, reading computer screens or performing most household tasks. Johnson’s Declaration, at 5; Gullickson’s Declaration, at 4. Additionally, without corrective lenses Johnson cannot read a book or newspaper beyond a distance of five or six inches. Id. Both are similarly impaired viewing a television or movie screen beyond a distance of several feet. Id. These alleged limitations are supported by the opinion of Dr. Monaco, an optometrist. According to Dr. Monaco, an individual with 20/200 vision is substantially limited in his or her ability to see in general, while an individual with better than 20/200 vision would be limited in his or her ability to see at dawn or at dusk, at night, in rain, fog or haze depending on his or her degree of contrast sensitivity. Dr. Monaco’s Declaration, at 12-13. Neither Johnson nor Gullickson, however, allege any limitations caused by their myopia, other than their inability to work as Delta pilots, when wearing their corrective lenses.

Since Johnson and Gullickson have obtained FAA transport pilot licenses, both have been able to work for several years as commercial pilots. Johnson is currently employed as a first officer with America West Airlines (Johnson’s Resume), [10] while Gullickson holds the same position with Southwest Airlines, Inc. (Gullickson’s Declaration, at 2). Both men applied for pilot positions with Delta, Gullickson in 1990 and Johnson in 1991 and 1992, but each was notified by letter that Delta could not offer him encouragement for flight officer employment because new hire pilots’ uncorrected vision must be 20/20 or better. Delta Letter dated June 13, 1990; Delta Letter dated Sep. 30, 1991.

b. Summary Judgment

Summary judgment is appropriate when the record shows that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. 41 C.F.R. §60-30.32(e). The moving party must demonstrate that there is an absence of a genuine issue of material fact by the complaint, answer, admissions, depositions and affidavits, if any. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). The burden then shifts to the non-moving party to point to specific facts beyond the allegations or denials of the pleadings demonstrating a genuine issue of material fact for hearing. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Any permissible inferences drawn from the facts must be construed in the light most favorable to the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962). “Where the record taken as a whole [can]not lead a rational trier of fact to find for the non-moving party, there is no ‘genuine issue for trial.’ ” Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986), quoting First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 289 (1968).

c. Analysis

The Rehabilitation Act of 1973, 29 U.S.C. §704 et seq. (“the Act”), provides protection for disabled individuals [11] against discrimination in employment, education, and federally funded programs. Specifically, Section 503, under which this action was brought by OFCCP, [12] applies to federal contractors, requiring them to take affirmative action to employ and advance qualified disabled individuals. 29 U.S.C. §79. [13] The Act defines disabled individuals as any person who:

(i) has a physical or mental impairment which substantially limits one or more of such person’s major life activities,

(ii) has a record of such an impairment, or

(iii) is regarded as having such an impairment.

29 U.S.C. §706(7)(B). Assuming jurisdiction under the Act, [14] I hold that pilots with myopia do not qualify as disabled individuals.

1. Substantially Limiting Impairment

A person can qualify as a disabled person under the Act if the individual has a physical or mental impairment which substantially limits one or more of such person’s major life activities. The term “impairment” has been interpreted to mean “any condition which weakens, diminishes, restricts, or otherwise damages an individual’s health or physical or mental activity.” E.E. Black, Ltd. v. Marshall, [24 EPD ¶31,260] 497 F. Supp. 1088, 1098 (D. Haw. 1980). Such an impairment, however, must substantially limit a major life activity to qualify an individual as disabled. Although major life activities include such things as self care and ambulation, the primary focus of Section 503 is on life activities that affect employability. 41 C.F.R. Appendix A to Part 60-741. An impairment substantially limits an individual if he or she encounters difficulty securing, retaining or advancing in employment. Id.

OFCCP argues that myopia is an impairment under the Act because it is a refractive error that without correction prevents a pilot from receiving a first or second class medical certificate from the FAA to fly commercial airliners, thereby substantially limiting a myopic pilot’s employability. Delta, on the other hand, contends that myopia, as a minor, relatively common condition, does not qualify as an “impairment” under the Act and, moreover, only limits pilots from one employment opportunity, that of a Delta flight officer.

I conclude that myopia is not an impairment under the Act. The term impairment, as used in the Act, implies more than an average characteristic shared by many.

The Rehabilitation Act assures that truly disabled, but genuinely capable, individuals will not face discrimination in employment because of stereotypes about the insurmountability of their handicaps. It would debase this high purpose if the statutory protections available to those truly handicapped could be claimed by anyone whose disability was minor and whose relative severity of impairment was widely shared. Indeed, the very concept of an impairment implies a characteristic that is not commonplace and that poses for the particular individual a more general disadvantage in his or her search for satisfactory employment.

Forrisi v. Bowen, [40 EPD ¶36,307] 794 F.2d 931, 934 (4th Cir. 1986). Like height or strength, myopia is a physical characteristic, not a “chronic illness, a disorder or deformity, a mental disability, or a condition affecting [an individual’s] health.” Trembczsynski v. City of Calumet, 1987 WL 16604 (N.D. Ill.); Jasany v. United States Postal Serv., [36 EPD ¶35,070] 755 F.2d 1244, 1249 (6th Cir. 1985). Although it is termed a refractive error from which OFCCP attempts to shoehorn the condition into the definition of impairment, myopia is measured by comparing a myopic individual’s ability to see with that of the average or normal person. See Declaration of Dr. Monaco, at 7. Johnson and Gullickson’s vision simply varies somewhat from that of an average person, much as their height or weight most likely varies from that of the average person; myopia is, after all, a relatively common condition, widely shared by the populous. To find myopia an impairment under these facts would make a mockery of the goals of the Rehabilitation Act. [15]

Even if myopia is an impairment, it is not disabling because it does not substantially limit an individual’s employability. Such a determination must be made on a case-by-case basis, examining the degree to which an individual’s impairment prevents him or her from obtaining or retaining employment. Forrisi, 794 F.2d at 933. Several factors must be examined to determine whether an impairment substantially limits a person’s employability:

(1) the number and type of jobs from which the impaired individual is disqualified;

(2) the geographical area to which the individual has reasonable access; and

(3) the individual’s job expectations and training.

Welsh v. City of Tulsa, Okl., [60 EPD ¶41,838] 977 F.2d 1145, 1419 (10th Cir 1992), quoting Jasany, 755 F.2d at 1249. This multi-factor approach is necessary to separate minor from major impairments. Virtually everyone exhibits physical or mental characteristics that deviate from what is considered normal, but only characteristics that substantially impair one or more of a person’s major life activities qualify a person as disabled under the Act. See Reeder v. Frank, [61 EPD ¶42,185] 813 F. Supp. 773, 780 (D. Utah 1992), aff’d, [62 EPD ¶42,556] 986 F.2d 1428 (10th Cir. 1993). OFCCP argues that this analysis must be accomplished without considering the availability of corrective devices such as eyeglasses or contact lenses. If this were indeed the case with persons affected by myopia, then a large percentage of Americans including myself would be disabled because without eyeglasses even mildly myopic individuals, i.e., individuals with 20/25 vision, [16] can be impaired for work in certain fields. Declaration of Dr. Monaco, at 5. With moderate myopia (20/40 vision) an individual is unable to read a computer screen, which is a necessary skill for many if not most white collar jobs today. See supra, at 4. In fact, as OFCCP points out, eyeglasses are required for myopic individuals to legally drive. It defies logic to consider whether individuals are disabled by examining their ability to perform tasks without corrective devices when by law they prohibited from performing such tasks without these corrective devices. Likewise, it is are absurd to examine the employability of myopic pilots without their use of corrective lenses when without the use of corrective lenses a myopic individual could not become a pilot.

Those courts that have considered whether poor eyesight renders an individual disabled under the Act have focused on the extent to which such eyesight could be improved or corrected. In all cases in which an individual’s corrected vision was 20/20, he or she was found not to be disabled. [17] See Padilla v. City of Topeka, [40 EPD ¶36,244] 708 P.2d 543 (Kan. 1985) individual with 20/100 vision in his left eye and 20/70 vision in his right eye correctable to 20/20 with eyeglasses who was denied employment by the Topeka police department, which requires not less than 20/50 uncorrected vision in each eye, was not a handicapped person; although the individual suffered from a vision impairment he was not substantially limited in a major life activity because he was otherwise capable of performing the duties of a police officer and had worked as a police officer at all relevant periods of time during the case); Trembczsynski v. City of Calumet City, 1987 WL 16604 (N.D. Ill.) (plaintiffs who were ineligible to be full-time police officers for Calumet City because their uncorrected vision was worse than 20/30 were not handicapped individuals for purposes of the Act because their vision impairment did not “prevent them from engaging in most of life’s activities or working in most professions”); Chandler v. City of Dallas, 2 F.3d 1385 (5th Cir. 1993) (because the Fifth Circuit has held that vision correctable to 20/200 is not a handicap, vision correctable to 20/60 is clearly not disabling). [18]

OFCCP relies incorrectly on OFCCP v. Commonwealth Aluminum, 82-OFC-6 (1994) (Final Decision and Order, Acting Assistant Secretary for Employment Standards), for its position that the substantiality of an impairment must be determined without considering the availability of mitigating devices. For the issue in Commonwealth Aluminum was whether an employer could require an applicant to undergo surgery to correct his hearing before considering him for a job. Although the Assistant Secretary commented on the legislative history of the Americans with Disabilities Act, 42 U.S.C. 12101 et seq. (1990) (“ADA”), [19] which states that mitigating measures should not be used when assessing whether an impairment substantially limits a major life activity, it was in the context of overruling the Administrative Law Judge’s reliance on a proposed amendment to Title VII of the Civil Rights Act of 1964 to support his holding that Congress did not include temporary and correctable impairments in the definition of disabled individuals. More important, although the definition of disability in the ADA is based on the same definition in the Rehabilitation Act, it does not necessarily follow that regulations governing the ADA apply to the Rehabilitation Act. If it was the intent of Congress to prohibit the consideration of mitigating devices when analyzing a substantial impairment, then the language of the Rehabilitation Act could have been changed given that the Act has twice been amended since its enactment in 1973.

Myopic pilots are only disqualified from working as Delta flight officers and as pilots for the military. Relying on E.E. Black, OFCCP argues that it must be assumed that all airline employers have the same requirements for their flight officer positions, i.e., all commercial airline companies require their pilots to have 20/20 uncorrected vision, reasoning that otherwise an employer would be free to discriminate as long as it provides as a reason for rejecting an applicant a job criteria that no other company has. This, however, is an unjustifiable fiction in a case in which the complainant pilots have found employment as commercial airline flight officers. More important, E.E. Black was one of the first cases to address the definition of impairment under the Rehabilitation Act and its approach in regard to the number and type of jobs from which an individual is disqualified has not been followed or has been modified by other courts. For example, the Seventh and the Tenth Circuits require an allegedly disabled individual to show that other employers have the same job requirements that disqualify him or her from working, rather than simply assuming all employers do. [20] Furthermore, the regulations implementing the ADA expressly state that among the factors to consider in determining whether a limitation on employment is substantial are “the job[s] from which the individual has been disqualified because of an impairment, and the number and types of jobs utilizing similar training, knowledge, skills or abilities, within that geographical area, from which the individual is also disqualified because of the impairment.” 29 C.F.R. §1630.2(j). There is no assumption that all employers with similar job openings have the same job requirements. In fact, the Equal Employment Opportunity Commission had suggested such an assumption be required when analyzing whether an employer regarded an individual as disabled under the ADA, but this recommendation was eliminated in the language of the final rule. See Equal Opportunity for Individuals with Disabilities, Notice of Proposed Rulemaking, 56 Fed. Reg. 8578 (1991) (codified at 29 C.F.R. pt. 1630) (Proposed Feb. 28, 1991); Equal Opportunity for Individuals with Disabilities Final Rule, 56 Fed. Reg. 35,726 (1991) (codified at 29 C.F.R. pt. 1630).

An individual’s inability to work as a commercial airline pilot for Delta does not prove that such individual is disabled within the meaning of the Act. A person is not substantially limited in the major life activity of working if he or she is merely denied employment at the specific job of his or her choice. See Tudyman v. United Airlines, [38 EPD ¶35,674] 608 F. Supp. 739, 745 (D.C. Cal. 1984). Even if myopic pilots were totally precluded from working as commercial airline pilots, yet still assuming they possessed valid pilot’s licenses, [21] other jobs are available taking into account a pilot’s training and qualifications. Myopic pilots could work in training or management positions with airline companies or find employment with courier or cargo transportation services. An individual’s employment universe is not limited to “a single, identical job existing among various employers in the same industry” but rather is expandable to potential employment for which an individual is qualified given his or her training, skills and past job history. OFCCP v. Yellow Freight Systems, Inc., 84-OFC-17 (1993). In fact, by way of illustration, the appendix to the regulations implementing the ADA states that “an individual who cannot be a commercial airline pilot because of a minor vision impairment, but who can be ... a pilot for a courier service, would not be substantially limited in the major life activity of working.” 29 C.F.R. Appendix to Part 1630.

2. Regarded As Impaired

Likewise, myopic pilots are not regarded by Delta as having an impairment. An individual is regarded as having an impairment by an employer if he or she is perceived by that employer to be substantially limited in a major life activity regardless of whether or not that individual is indeed handicapped under the Act. See S. Rep. No. 93-1297, 93rd Cong., 2d Sess., reprinted in U.S.C.C.A.N, 6389-90. In so defining disabled individuals, “Congress acknowledged that society’s accumulated myths and fears about disability and disease are as handicapping as are the physical limitations that flow from actual impairments.” School Bd. Of Nassau County, Fla. v. Arline, [42 EPD 36,791] 480 U.S. 273, 284 (1987). However, an employer does not regard an individual as handicapped simply because it finds that person unable to meet the requirements of a single job. de la Torres v. Bolger, [39 EPD ¶35,882] 619 F. Supp. 593, 597 (N.D. Tex. 1985). “The Rehabilitation Act seeks to remedy perceived handicaps that. like actual disabilities, extend beyond [the] isolated mismatch of employer and employee.” Forrisi, 794 F.2d at 935. Rather, an employer must find that the individual’s impairment generally forecloses him or her from performing the type of employment involved. Id. In this regard, this case mirrors Tudyman v. United Airlines, 608 F. Supp. 739 (D.C. Cal. 1984). In Tudyman, an applicant for a flight attendant position was rejected because he exceeded the airline company’s weight limit. The court found that United Airlines did not perceive the flight attendant as disabled but “merely regard[ed] plaintiff as not being under a certain weight.” Tudyman, 608 F. Supp. at 746. Likewise, Delta simply regards myopic pilots as failing to meet its vision standards for new hire pilots. If Delta did regard myopic pilots as disabled it would not retain pilots whose vision deteriorates during their tenure with the airline. Delta does not question Gullickson and Johnson’s ability to obtain employment in the airline industry and the record shows that they are in fact working as flight officers for commercial airlines. [22] This is simply an isolated case of a mismatch between an employer and employee, and therefore, complainant pilots have no redress under the Act.

Accordingly, OFCCP has failed to show that myopia is an impairment under the Act. Myopia is simply a commonplace characteristic that does not pose a disadvantage to individuals affected by it in their search for employment. Likewise, even if myopia is considered an impairment, it is not a disability because it does not substantially limit the complainant pilots’ employability. As their vision is correctable to 20/20, neither Gullickson nor Johnson are disqualified from any position except that of a flight officer with Delta Airlines.

RECOMMENDED ORDER

It is recommended that the case against Delta Airlines, Inc. for violating section 503 of the Rehabilitation Act by failing to hire pilots whose uncorrected vision is less than 20/20 be dismissed.